Palmer v. Matthews

Adams, J.: Several exceptions to the rulings of the trial court are pressed upon our attention by the plaintiff, who appeared in person upon the argument of this appeal, and it is claimed that they present error which requires a reversal of the judgment and order appealed from. But after careful examination of the same we find ourselves unable to acquiesce in this contention. To our view the most serious question which the case presents is that raised by exceptions to certain inquiries put to the plaintiff upon his cross-examination relative to similar actions brought by him against other newspapers for the publication of this identical article. It appears that, before the present action was commenced, the plaintiff demanded of the defendants that they retract the alleged libel and compensate him. for the injury which he claimed to have sustained in consequence of its publication. This demand was in the form of a letter, which was followed by several other letters written by the plaintiff and sent to the defendants, in one of which, under date of July 17,1891, were inclosed some clippings, from other newspapers, and in regard to which the plaintiff wrote as follows, viz. : “ I am prepared to demonstrate to you, as I already have done to the counsel of the papers which I inclose, that the charges made were absolutely baseless, and that, in addition to the ordinary injuries always arising from srich false and infamous charges, my business interests received a direct injury from your publication. The financial loss to me from the publication as a whole was most serious. However, I do not expect any one paper to bear it all, but only its due proportion. * "x" * ” This letter was offered by the defendants and received in evidence without objection during the plaintiff’s cross-examination, and it was followed by inquiries to which we have already adverted and which simply called for a statement as to tire number of papers he had brought actions against for publishing this same article. The plaintiff bases his contention that the admission of this class of evidence was error upon the assumption that it was received by way of mitigation. In this, however, he is clearly mistaken, for the learned trial court was particular to say that it was admitted only by way of cross-examination, and in his charge to the jury neither [152] this nor any other circumstance save the absence of express malice and the source from which the defendants received the article was alluded to as mitigating in its character. The sole question, therefore, as we regard it, is, was the evidence thus objected to properly received in connection with the cross-examination of the plaintiff ? Subject to certain well-defined limitations, the range and extent of a cross-examination are generally within the discretion of the trial judge, and a court of review ought not to interfere unless it is made to appear that this discretionary power has been abused. (Foster v. Tanenbaum, 2 App. Div. 168; People v. Casey, 72 N. Y. 393.) That 'the record in this case does not disclose any such abuse of power is, we think, perfectly apparent. In one of the letters written by the plaintiff under date of November 30, 1893, which was introduced in evidence by him, he alludes to the fact that other papers had published the libel, and claimed that it in no wise affected his right of action against the defendants. In the subsequent letter of July 17, 1891, he not only incloses clippings from some of those papers, but informs the defendants that all he asks of them is that they shall bear their due proportion of the pecuniary compensation he was seeking to obtain through the medium of his various actions. This last-mentioned letter was one of a series of five written by the plaintiff to the defendants, four of which he had already read in evidence. In these circumstances we think it was entirely proper for the defendants to complete the series by introducing the one which had been omitted; and having done that, to cross-examine the plaintiff respecting its contents. In pursuing this course, the plaintiff’s attention was directed to the statement in his letter that this particular article had been published by other papers, and, upon his conceding that such was the fact, he was asked how many papers had published it, to which he replied that he did not know. Up to this point there certainly can be no doubt as to the propriety of the questions put to the plaintiff, and liad he answered the last one it would perhaps have been all that the defendants were entitled to. But, inasmuch as he disclaimed any knowledge upon the subject of the inquiry, we are unable to see why it was not perfectly legitimate for counsel to pursue it, and, in order to refresh the recollection of the witness, ask him how many papers he had brought actions [153] against. The answer to this question furnished some information as to the number of papers which had published the article, and while it may, as is claimed, have had a tendency to reduce the amount of the plaintiff’s recovery, that circumstance does not make its reception error, provided it was competent for any purpose. As has been well said by an eminent jurist, “A party who seeks to testify in his own behalf must take the risk if there are vulnerable joints in his harness.” (People ex rel. Phelps v. Oyer & Terminer County of N. Y., 83 N. Y. 461.) One of the principal objects of a cross-examination is to expose these “ vulnerable joints,” and it matters not whether they are the result of defective character, contradictory statements or declarations against interest, their discovery is one of the risks which a party assumes when he takes the stand as a witness in his own behalf. As has been already intimated, this is the only question which we deem it necessary to discuss, and as it, to our mind, presents no error, our conclusion is that the judgment and order appealed from should be affirmed. Judgment and order affirmed, with costs. Green and Ward, JJ., concurred; Hardin, P. J., and Follett, J., dissented.